Decree of divorce u/s 13B(2) of HMA cannot be granted without Continued Mutual Consent, Delhi HC

The Delhi High Court has reiterated that in the absence of “continued mutual consent”, a decree of divorce under Section 13 B(2) of the Hindu Marriage Act (HMA), 1955 cannot be granted..The presumption of consent for divorce cannot be attributed to a party who is not present before the Trial Court “as consent needs to continue till the date of the decree of divorce under Section 13B (2)”, the High Court decreed..It further held that the matrimonial court is under a statutory obligation to hear the parties to ascertain their consent at the time of making a decree..The judgment was pronounced by Justice Anu Malhotra in an appeal under Section 28 of the HMA, assailing the order passed by an Additional District Judge..The parties had moved the Trial Court for divorce by mutual consent. However, during the course of proceedings before the Trial Court, the appellant-wife withdrew her consent and refused to participate in the proceedings..Dismissing the appellant-wife’s leave to withdraw her consent, the Trial Court held that there was no force, threat, pressure, coercion and undue influence exercised against her, and that she had taken up a false plea in order to extort more money from her husband..The Trial Court observed that the appellant-wife and her husband could not live together as they have reached a point of no return, and their marriage had broken down irretrievably..It hence directed that a sum of Rs. 8 lakh be given to the appellant-wife by the now deceased husband, as recorded in the statements during the first motion petition, and awarded the divorce..The appellant-wife sought to set aside the divorce decree on the ground that it was “a nullity in the eyes of law and against the cannons of acceptability”. It was argued that divorce could not be “fastened on a litigant unilaterally and arbitrarily” when the appellant-wife had not expressed her inclination to consent for a mutual consent divorce..Setting aside the divorce decree, the High Court held that “the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case“. It noted that the appellant-wife not even present on the date of the decree of divorce granted through mutual consent..The Court also noted that the death of the husband during the pendency of the matrimonial appeal would have no bearing upon the appellant-wife’s “right to sue”, as it would continue in favour of the husband’s legal representatives..It thus held,.“In the circumstances, the impugned order which granted the decree of divorce through mutual consent dated 06.10.2007 of the learned Additional District Judge, Delhi in HMA No. 801/06 is set aside.”.It further directed that the alimony amount of Rs 8 lakh which was converted into an FDR in the name of the appellant-wife by an order of the Court, be released in favour of the legal representatives of the deceased husband, along with the interest..The appellant-wife was represented by Advocate Laltaksh Joshi. The respondent-husband and his legal representative were represented by Advocates S Mukerjee and Yogendra Kumar..Read the judgment: